Deakin v Hunters Hill Municipal Council (No. 2) [2005] NSWLEC 53

Land and Environment Court of New South Wales

CITATION : Deakin v Hunters Hill Municipal Council (No. 2) [2005] NSWLEC 53

APPLICANT Lisa Deakin

PARTIES : RESPONDENT Hunters Hill Municipal Council

FILE NUMBER(S) : 10590 of 2004

CORAM: Hoffman C

KEY ISSUES: Appeal :- Costs

LEGISLATION CITED: Land and Environment Court Act 1979

RCM Constructions Pty Ltd v Ryde City Council (No.2) [2004] NSW LEC 361; CASES CITED: Funtime Investments Pty Ltd v Yass Valley Council [2004] NSWLEC 300

DATES OF HEARING: 05/08/2004

DATE OF JUDGMENT: 02/18/2005

APPLICANT Mr M Deakin, solicitor SOLICITORS Middletons LEGAL REPRESENTATIVES: RESPONDENT Ms K Gerathy, solicitor SOLICITORS Abbott & Tout

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

5 August 2004

10590 of 2004 Lisa Deakin v Hunters Hill Municipal Council

JUDGMENT 1 This was a class 1 appeal No. 10590 of 2004 between Lisa Deakin v Hunters Hill Municipal Council. Costs were reserved in the matter and the applicant sought a hearing on costs following the judgment. 2 The decision upheld the applicant's appeal but a condition of consent required a partial redesign of the development to make the proposal acceptable in the context of the streetscape and conservation area in which the proposal was located. 3 The core of the applicant's submission on costs was that the design changes the Court imposed had been at the council's heritage expert's suggestion and had only been communicated to the applicant on 19 July 2004, two weeks before the hearing. The applicant claimed the council's failure to communicate on that position has been typical of poor communication since the original application on 29 October 2003. 4 The applicant cited some instances of various meetings and letters where the reduction of bulk and height and the possible deletion of the 2nd storey was raised but not the design style being unsuitable. Also there were long delays in council communicating relevant information. For instance on 19 November 2003 the Council Conservation Advisory Committee expressed the above concerns in a report, but its contents were not given to the applicant until 8 February 2004. 5 The applicant said it advised the council of its intention to appeal and seek costs in April 2004. It was not until applicant got discovery in May that heritage/conservation started to surface and Mr Patch's sketches and suggested redesign came at the mediation 9 days before the hearing. By that time the applicant's costs were substantial. 6 Also the concern about the parking space in the front setback and concern about the landscaping only arose after the appeal was lodged. 7 The applicant said the council should have put all these matters before the applicant much sooner. The delay in advising of the Conservation Advisory Committee was 3 months from when the council saw it. The applicant had offered to accept any mediation decision provided the council officer attending had power to agree to a binding decision. The council had taken 1½ months just to reply to that. 8 The circumstances of the applicant meant it had holding costs, rental of family accommodation as well as professional fees. The applicant put that the Court allowed the part – 2nd storey of the proposal that the council sought to remove. Having had the appeal upheld by the Court the applicant believed it was entitled to: o Rental expenses from the date of the council refusal to the date of the Court judgment; o Legal fees from the date of lodgement of the appeal; o Experts witness fees from the date of lodgement of the appeal.